A mr. Hashim Kidwai has written19 that mr. Advani's
claim
that no namaz was offered in the Babri Masjid since 1936,
a full thirteen years before the Hindu take-over, "is not
based on facts". To substantiate his counter-claim, he
brings up the most first-hand kind of evidence : "My
father was posted at Faizabad as Deputy Collector from
1939 to 1941 and I, along with my mother and other
members of my family, visited the Babari mosque in
October 1939 and again in October 1941 and offered the
Zuhar (noon) prayers there."

I readily believe this man's testimony, especially
because it does not prove what he wanted to prove. It
proves that the Babri Masjid was still considered a
mosque, and had not been transformed into anything else.
In fact, it clearly prove that some Muslims still went
there to offer prayers. However, the fact that someone
who wants to prove that the place was still in use in
1936-49, merely says that his family went there twice
(visiting it) in more than two years, and does not say
that he saw with his own eyes that the Muslim community
gathered there every Friday, is a strong indication that
the place no longer was a community mosque in regular
use.

I have so far not seen any document that settles the
matter in a conclusive way. But then, that is more to
the disadvantage of the Muslim than of the Hindu side.
If the Muslim community was effectively using the place,
then in those thirteen years under discussion it should
have produced some documents proving it.

In a memorandum of Muslim MLA's from Uttar Pradesh to the
chief minister20, not more is claimed than that
prayers
were offered until 21/12/1949 without any restriction.
It is a fact that there was no restriction on offering
prayers, but in all this happy unrestrictedness, how many
devotees effectively came to pray? These MLA's are not
even claiming that the place was the community mosque for
a designated group of local Muslims, let alone proving
it.

In a comment on the VHP list of documents presented to
the government of India (6/10/89), the BMMCC again fails
to make this full claim.21 Commenting on two
documents
which the VHP has included as supporting its case, two
Waqf documents of 1940 and 1941, the BMMCC can only
dismiss them as not very legible, and then quickly
jumps to comment on the events of 1949 when "Muslims of
the place were being subjected to harassment and
prevented from offering namaz in the Babri Masjid".
Reading not very legible documents is not going to
convince many people.

The long list of AIBMAC documents presented to the
government on December 23, 1990, again merely contain
proof that the Muslims had legal access to the place, not
that it actually was their regular prayer-ground.

The claim that the Babri Masjid was a normally
functioning community mosque up till 1949, is also
rendered unlikely by what happened just before the take-
over. It seems that the appearance of the idols on 22
December 1949 was not at all unannounced. Justice Deoki
Nandan Agarwala mentions, in an appendix to an open
letter to the prime minister22, that on 16 October
1949,
group recitation of the entire Tulsi Ramayana started in
different places in an around the disputed property in
order to purify it, and the Ram devotees removed the
remnants of the graves of the Ganj-i Shaheedan (Martyrs'
place, the burial ground of the Muslim victims of the
1855 battle over the nearby Hanuman Garhi temple). If
the place had been in regular use as a community mosque,
this would have been impossible, or at least it would
have occasioned serious riots.

The course of Muslim participation in litigation over the
site is also not really compatible with the continuous
use of the Masjid up to 1949. If the Sunni Waqf Board
was effectively managing the Masjid in 1949, why did it
not immediately start litigation to reclaim its stolen
property, especially since the theft would have
interfered with the community life of the local Muslims
in a very frontal way ? In fact, the Sunni Waqf Board
only entered litigation in 1961, just five days before
the twelfth anniversary of the take-over, on which date
any claims became time-barred.

Also, in its 1961 plaint, the Sunni Waqf Board is
conspicuously silent about any details of an actual
mosque management : who was effectively in charge of the
Masjid as its mutwalli, if at all there was one ? When
was the repair of the building (damaged in 1934 riots) by
the British authorities completed, and when was namaz
resumed ? The Waqf Board has nothing more to offer than
the general assertion that namaz was offered both and
after the said repairs. As we have seen, that statement
is correct in the sense that the place was available for
namaz, so that individual Muslims could go there, but so
far not substantiated in the sense that it was used for
regular community prayers.

After the enactment of the U.P. Muslim Waqfs Act in 1936,
the District Waqf Commissioner of Faizabad made a
complete inquiry, and the fact that he really had to
inquire again shows how non-alive the Masjid was. In
his report (16/9/38), he does mention someone who was
known as, and called himself, the mutwalli of the Babri
Masjid. The man, Syed Mohammed Zaki, was a Shia and
traced his ancestry and his job to Mir Baqi, also a Shia.
However, he was an opium addict, unsuited for his duties,
and this could be seen from the neglected state of the
Masjid. So, according to this official Waqf report, the
place was neglected; and apparently, nobody in the
Ayodhya Muslim community was doing anything about it.
And even after the report was submitted, and even after
it was published in the gazette of the Sunni Waqf Board
in 1944, neither the Sunni nor the Shia Waqf Board
stepped in to effectively take care of the Masjid.23

Incidentally, it seems that the name Babri Masjid became
the official term from this report onwards, as before it
was mostly referred to as Masjid-i Janmasthan.

What Shias and Sunnis did do, was to quarrel over whether
it was a Shia or a Sunni mosque. Again, their
argumentation centered around historical claims, such as
that Babar was a Sunni, and that Mir Baqi was a Shia. It
did not focus on the actual use of the mosque, claiming
that the users were mostly Shias (c.q. Sunnis), or
whether they did the Shia or the Sunni thing on the
festival Muharram. The British court ruled, in March
1946, that it was a Sunni Waqf property, but that it had
been shared by Sunnis and Shias, in the sense that there
was no prohibition for either to use it.

From a report dated 10/12/1949, by Waqf inspector
Mohammed Ibrahim, it is clear that the official mutwalli
of the Babri Masjid was systematically the nambardar
(revenue collector) of the village Sahanwa, several miles
away but still in the Faizabad district. This Shia
functionary was automatically deemed to be in charge of
the Babri Masjid, which otherwise did not have any
manager of its own. But the Babri Masjid job was only
nominal, and the mosque was not taken care of.

The report also said that due to fear of the Hindus and
Sikhs, nobody offered namaz in the Babri Masjid, and that
travellers who stayed there for the night were abused and
harassed by the Hindus from the near-by establishments.
We should see this state of affairs against the
background of the 1934 riots around the Babri Masjid,
triggered by a cowslaughter. These riots made many
victims and the building was seriously damaged. Several
people were killed inside the mosque, which desecrated it
in Muslim eyes. According to justice Deoki Nandan, even
after the British had the building repaired, the Muslims
did not come/return to effectively use the mosque, for
fear of the Hindus, especially the martial monks of the
three nearby Akharas (Nirmohi, Nirvana and Digambar).

It is even disputed whether the Masjid was effectively
used before 1934, and even before 1855. Dr. Harsh Narain
has summarized an 1858 document by one Muhammad Asghar
(demanding the removal of the Ram platform just outside
the Masjid) : He has mentioned that the place of
Janmasthan has been lying unkempt/in disorder (parishan)
for hundreds of years, and that the Hindus performed
worship there.24

A second document that dr. Narain quotes, is a paragraph
from a book by local Urdu writer Mirza Rajab Ali Beg
Surur : "A great mosque was built on the spot where Sita
ki Rasoi is situated. During the reign of Babar, the
Hindus had no guts to be match for the Muslims...
Aurangzeb built a mosque on the Hanuman Garhi... The
Bairagis effaced the [Aurangzebi] mosque and erected a
temple in its place. Then idols began to be worshipped
openly in the Babari mosque where the Sita ki Rasoi is
situated." So the grip of the Muslims on the sacred
places of central Ayodhya was so weak that they couldn't
even prevent the demolition of a mosque. In that
context, mr. Surur's observation on the Babri Masjid may
well indicate what it says, viz. that the Babri Masjid
was abandoned by the Muslims and even sometimes used by
the Hindus (until it was prevented, perhaps in 1855, or
at any rate by the British from 1856 onwards).

The testimony by the Austrian Jesuit Joseph
Tieffenthaler, who visited Ayodhya in 1767, also seems to
be saying that the Masjid had been re-occupied by the
Hindus.25 What is more, neither he nor, to my
knowledge,
any of the Muslim sources, mentions Muslim worship in the
Babri Masjid. These are indications for what many common
people in Ayodhya have told me : that the Babri Masjid
has not been a real mosque for most of its history. With
such a prehistory, it also becomes understandable that
the local Muslim community in the 1930s and 1940s could
have a mosque standing there and yet not use it. What
kept them away, just like (according to the above
mentioned sources) in the days of Nawabi rule, was the
Hindu presence. The Hindus did not dare to defy the
British rulings concerning the place, but were
nonetheless strong enough to constitute a threat for
Muslims who wanted to assert too much of a presence.

As against the strong indications that the mosque was not
really functional, it is reported that there is one very
authoritative witness to the contrary still alive today :
Maulvi Gaffar, described as "the Imam of Ayodhya's
erstwhile Jama Masjid... The last time he had led the
Friday prayers at the Babri Masjid was 41 years ago, on
December 22, 1949. Then the idols appeared and the
District Magistrate K.K. Nayar asked him to suspend
activities in the masjid for three to four weeks, while
an inquiry was made. The 90-year old Imam says he is
still waiting to resume his vocation."26

Of course, this testimony is presented in a very
secularist paper, and I have found out by now that
secularist journalists have no scruples at all about
wrongly describing or misquoting their interviewees.
Compared to the testimony of Waqf and Court documents,
that is still no reliable counter-proof. In fact it is
rather strange that the BMMCC in its reply to the VHP
presentation of documents, does not mention this
testimony. So far, to my knowledge, this testimony has
not brought up by the pro-Babri side in any context where
hard (challengeable and verifiable) proof is required.

Yet, judicially the Babri case may stand or fall with the
proof that it was a regular mosque up to 1949. After
all, the Court Order of the Civil Judge, Faizabad, of
March 3, 1951, based its decision to guarantee the Hindu
plaintiff the right of worship in the building, partly on
the information that it had not been used as a mosque
since at least 1936 : "It further appears from the copies
of a number of affidavits of certain Muslim residents of
Ayodhya that at least from 1936 onwards the Muslims have
neither used the site as a mosque nor offered prayers
there... Nothing has been pointed to discredit these
affidavits..."27 If the man described as the
erstwhile
Imam did not go to court at that time to contradict the
statements by his fellow Muslims, well, then I would
doubt he really was the Babri Masjid Imam. Until the
judge's assumption is disproven, this must count as the
official version : on the strength of local Muslim
testimony, the Babri Masjid was not in regular use since
at least 1936. If any firm counter-proof had come up by
now, I guess we would have seen it : the pro-Babri
faction has enough media at its disposal to present the
strong points in its case.

Nevertheless, to conclude the discussion of the status of
the Babri Masjid just before its conversion into a Ram
Mandir, I cannot say that either side's case is as yet
100% convincing. There have certainly been individual
Muslims offering namaz in the Babri Masjid in the
forties, but from the available evidence it seems that it
was not a regular mosque functioning as the real
community centre of the local Muslims.

Apart from the factual question of the effective status
of the disputed building in 1949, a judicial settlement
of the dispute would have to base itself on
technicalities like Waqf (and other trusts) property
jurisprudence and the division of the domain in three
parts with different ownership titles. I will not go
into those here.28 Before the Court could go into
those
technicalities, it had, however, to decide first whether
the Sunni Waqf Board's plaint was not time-barred. It
was filed five days before twelve years after the Hindu
take-over. Now, for suits of declaration, a limit of
six years is prescribed, but for suits of possession, the
limit is twelve years. But it must be more complicated
than that, because at the time of writing, the matter has
still not been decided. The decision had been announced
for October 31, 1990, but it was once more postponed.

Meanwhile, there are doubts about how independently the
judiciary apparatus can still function in the present
circumstances. When justice K.M. Pandey ordered the
locks removed from the Mandir gate, on February 1, 1986,
many secularists said that this was a Congress-sponsored
quid pro quo with the Hindus in return for the infamous
Muslim Women's Bill.29 That is of course a very
serious
allegation against the judge. What did happen, is that
the Congress government first asked the VHP to file a
petition to get the locks removed. When the VHP refused,
the Congress moved one of its own people to file the
petition, which was granted by the judge. This did not
require any bribing or otherwise influencing of the judge
: the argumentation of the petition was such that a
positive Court ruling was virtually assured.

Shortly before the Kar Seva, the same judge was refused a
promotion by the Union law minister at the insistence of
U.P. chief minister Mulayam Singh Yadav, against the
advice of the senior judges, which is normally followed.
Mulayam, in the middle of his propaganda and military
build-up to prevent the Kar Seva programme, justified his
veto on the ground that justice Pandey is a
communalist.

Lawyers and judges have protested against this
interference. If a judge can be punished by the
executive power for the contents of his Court rulings,
then that is an intolerable breach of the separation of
the legislative, executive and judiciary powers, one of
the cornerstones of a modern democratic polity. The
secularists, champions of modernity against obscurantism,
have in this case condoned this Ancien Regime practice by
their silence. They have not stood up to remind Mulayam
that, according to their own earlier opinion, justice
K.M. Pandey had only acted on government orders.

In January 1991, when Mulayam and the central government
had become critically dependent on Congress support, and
Congress did its best to placate the Hindu electorate as
much as possible, justice K.M. Pandey was given his
promotion after all.30

The essence of the Muslim position in the judicial debate
has been that the de facto ownership since 1528 creates a
title, no matter whether the acquisition then was
legitimate or not. However, this title by accustomed
possession only counts if the de facto possession went
unchallenged. If the victimized party continues to claim
its stolen property, even if the existing power equations
don't permit restoring it, then de facto possession does
not create a valid title. And it is well-attested that
the Hindus kept on claiming the site as much as the
situation permitted. So, even if the matter is treated
as purely a title suit over some real estate, the Hindus
do have a leg to stand on when they claim the Ram
Janmabhoomi site.

But of course, this dispute is not really an ordinary
title suit.

4.2 Disputed competence of the judiciary

The more fundamental question in the debate on the
juridical dimension of the Ayodhya, is whether the issues
involved can at all be adjudicated by a law court charged
with checking legality in terms of the laws of the Indian
Republic founded in 1947 and endowed with a Constitution
in 1950. The VHP has rejected the authority of the
Courts in this matter. The Babri Masjid groups have
opposed this stand and demanded that the VHP abide by the
Court verdict. But in October 1990, Imam Bukhari of the
BMAC has also declared that if the court ruling goes
against the Muslim demands, then he will not accept it,
and an agitation against the verdict will be launched.31

Of course, the VHP have a point when they argue that
their opponents are in no position to lecture them about
abiding by Court verdicts. First of all, there are a
number of articles in the Constitution which are not
being implemented, and of which the implementation is not
even actively demanded (often opposed) by the secularist
parties and critics. Among them:

Article 15, prohibiting discrimination, which is
effectively thwarted by the separate religion-based civil
codes, and by the almost unbridled imposition of
reservations in recruitment for government jobs;
moreover, this Article is violated by Article 30, which
gives to minorities the right to establish and administer
educational institutions of their choice, but forgets to
grant the majority the same right - unique in world
history; it is also violated by Article 370, giving a
special status to Kashmir and effectively giving a number
of privileges to Kashmiris denied to other citizens.

Article 44 mandates the establishment of a common
civil code, which Muslim organizations refuse (they
demand the scrapping of this Article), and which went out
of reach for a long time when the Congress government
gave in to the Muslim demand to overrule a Supreme Court
verdict and enforce Shariat rulings on divorcee
maintenance through legislation.

Article 48 wants the state to enact prohibition of
cowslaughter; Kerala, West Bengal and Nagaland have not
passed any such act, and in several other states the act
is openly violated ; India is in fact a beef-exporter.32

Coming to the issue of abiding by court verdicts, we find
the record of the parties other than the Hindu
communalists has not been all that impeccable. Some
examples :

Beru Bari was a district bordering on East Pakistan,
awarded by Radcliffe to India. When Pakistan minister
Liaqat Ali wanted it, Nehru obliged. The Supreme Court
struck down the agreement, but Nehru made his captive
parliament overrule the verdict, and ceded the territory.

Similarly, the Supreme Court verdict in the well-
known Shah Bano case was overruled by a law, in order to
appease Muslim fundamentalist agitation.

When Indira Gandhi was convicted for using unfair
means in the elections, she organized demonstrations in
which the mob clamoured for physical action against the
judge, and she shouted: "These are my people and my
judges".

V.P. Singh, champion of value-based politics, faced
with the possibility of the Supreme Court striking down
the implementation of the Mandal report, declared that he
would have it implemented anyway.

When some leftists demanded a ban on the Shilanyas
ceremony in Ayodhya, and on the Ram Shila processions,
the Supreme Court dismissed the demand, arguing that
these activities are but an exercise of the freedoms
guaranteed by the Constitution, and that even the threat
of riots does not nullify constitutional rights, since it
is the duty of the governments to protect the exercise of
constitutional freedoms against such threats of violence.
Nevertheless, the secularist/Stalinist intelligentsia has
been shouting scandal that the government did not ban the
Shilanyas and the processions, and has been deflecting
attention from the Supreme Court's upholding the
constitutional rights which Hindus also have. In their
comments afterwards, they have kept on attacking Rajiv
Gandhi for not committing contempt of Court by taking the
unconstitutional step of proclaiming a ban (the sweetest
thing for a Stalinist mind) on the Shilanyas.

A petition to ban mr. Advani's rathyatra from Somnath
to Ayodhya was dismissed, since there was nothing illegal
about it, Yet the secularists have kept on demanding the
ban, and finally Laloo Prasad Yadav, chief minister of
Bihar, has ignored the judicial decision and arrested mr.
Advani.

In spite of a High Court ruling upholding the
pilgrims' right to have a Parikrama around Ayodhya, even
in the heat of Kar Seva, the U.P. chief minister Mulayam
Singh Yadav has effectively made it impossible.
Moreover, he had the canopy over the Shilanyas spot
removed against Court orders to preserve the status-
quo.33 A Human Rights Society
team released a report on
December 14 in Delhi, in which it contended that the U.P.
government had violated the Allahabad High Court orders
by effectively preventing the Parikrama. This
constituted an encroachment on the Hindus' religious
rights.34

So, if the VHP wants to disregard a judicial ruling on
Ayodhya, it is in more or less good company. But then
there is still a difference. While the above-mentioned
secularists have disregarded or violated Court orders
without disputing the competence of the Court in the
matter concerned, the VHP disputes that any Court can
have any authority in this matter.

On December 18, when it seemed that the government was
willing to let the decision depend upon the
archaeological evidence, which went in favour of the
Hindu claim, a Hindu religious leader still insisted that
no consideration except the Hindu belief should count Sri
Sugunendra Thirtha Swami of Puthige Math (Udupi) declared
that "archaeological proof should not clinch the Ram
temple issue".35 After all,
suppose Babar had been more
careful and removed every trace of the temple he demol-
ished: then the Hindus' position would remain equally
justified, yet the archaeological evidence would not be
taken as going in their favour. So, the Hindu belief
alone should suffice as a ground for leaving the place to
the Hindus.

The demand to put this item of belief above the authority
of the courts, is in my opinion not so much a display of
principled non-secularism, as rather a display of
mistrust in the Indian state. Hindus expect the state
not to respect Hindu beliefs and Hindu sacred places.
They know that, ever since Indira's favouring committed
judges, the judiciary is also not what it used to be.
They expect that the state will consider other things
more sacred and important than the Hindu sacred places :
among them, the Muslim title to the site, acquired
through force by the invader Babar, and never annulled by
the British colonizer.

However, formally the VHP's and the abovementioned
Swami's stand is non-secular. It does not want to submit
a decision to the secular authorities. Yet, a piece of
land being A's rather than B's property is a secular
matter, isn't it?

Well, that is precisely the point. In the Hindu view,
the piece of land is sacred. It is the deity's
property.36 Decisions concerning it are therefore
decisions with a religious dimension. Now, as secularism
means a divorce of state and religion, the state should
not interfere with religious affairs. I am not sure this
would be convincing to a secularist, but it certainly has
logic.

Some of the Babri Masjid advocates, notably Syed
Shahabuddin, have said that a Masjid is Allah's property,
but that Allah doesn't want it, and doesn't answer
prayers offered in it, if it was built on disputed land.
Of course, Islamic Scripture has never had any objection
to building mosques on sites disputed by Kafirs ; but
if mr. Shahabuddin wants to play the tolerant Islam
game, we should join him and compel him to be consistent
(instead of the tactical changes of position he and other
Babri advocates have been making). So, Allah doesn't
want the Babri Masjid, which has irrefutably been built
on a site stolen from the Hindus. With Allah's help,
this non-secular approach to the dispute yields an
unambiguous solution and relieves the secular judges of
an unpleasant case.